that these defendants violated her right to petition the government for redress of grievances, her right of free association, and her right to work in her chosen occupation, by means of unlawful discrimination, harassment, and false and defamatory statements, without due process of law. Complaint, para. 38. Plaintiff named these particular defendants because of their alleged actions and omissions before, during, and after the selection process.
With respect to the selection process itself, the uncontroverted evidence shows that the sole nexus between these trustees and that process is that they voted to approve Richard Robinson, the Chancellor's pick of the three finalists. See White Decl.; White Depo., at 94; Stone Depo., at 68-69. The trustees played no role in convening the selection committee and did not speak with committee members during the process. Harley Decl., para. 4; Stone Depo., at 68-69. In point of fact, neither trustee even knew who was on the committee until the selection was over. Harley Decl., para. 5; Stone Depo., at 68-69. Plaintiff has furnished no evidence to the contrary.
Moreover, Dorsey, who convened the committee, avers that she never discussed the selection of committee members with anyone on the Board of Trustees. Dorsey Decl., para. 20. Nor did anyone on the Board discuss plaintiff's candidacy with her. Id. Furthermore, when asked during her deposition about the foundation of her allegations against defendant White, plaintiff was unable to name any action he had taken which caused her to be rejected for the Director of Grants position. Mitchell Depo., at 503.
The mere fact that White and Stone voted to approve Robinson, the finalist selected by the Chancellor, is hardly evidence that they violated any rights of plaintiff. Under Board Policy 1.18, the only candidates upon which the Board is entitled to vote are those recommended to it by the Chancellor. Board Policy 1.18, § III. Chancellor Sarafian, in turn, considered the three finalists submitted to him by the committee, again, pursuant to the policy. Board Policy 1.18, § II.C. Neither the Chancellor nor the Board had the option of selecting Pearl Mitchell or any other nonfinalist for the position. See Dorsey Decl., para. 18.
Thus White's and Stone's vote to approve Robinson had no bearing on plaintiff's rejection. That decision was made by the committee in scoring her.
Nor is it material that the Board of Trustees, including White and Stone, discussed plaintiff's complaints that the selection process was "flawed" with the Chancellor during a closed session of the Board. See Dorsey Decl., para. 14; Exh. 1 to White Depo. That the Chancellor and trustees considered plaintiff's concerns by examining the selection process to ensure its fairness is not evidence that the process was in fact unfair or that White and Stone violated plaintiff's constitutional rights.
Plaintiff also holds defendants White and Stone accountable for their alleged failure to ensure the fairness of the selection process. Not only is there no evidence that the process was unfair, but the uncontroverted evidence demonstrates that White and Stone were totally uninvolved in that process, save for voting on the Chancellor's recommended candidates. Plaintiff cites no authority for the broad proposition that the Board of Trustees is potentially liable for every decision made at Peralta, regardless of whether such decision falls within its jurisdiction.
Finally, plaintiff contends that defendants White and Stone are liable under Sections 1981 and 1983 for reporting to the Chancellor and "demanding an investigation" of the anonymous phone calls they had been receiving about plaintiff.
Prior to the commencement of the selection process, both trustees received numerous anonymous calls circulating the various rumors about plaintiff's sexual activities, moral turpitude, and preferential treatment by Peralta officers, as well as a derogatory cartoon strip concerning plaintiff. White Depo., at 45-46; Stone Depo., at 58. Stone admits that each time she received an anonymous call about plaintiff she reported it to the Chancellor. Stone Depo., at 58. White admits he visited the Chancellor in person to report the rumors. White Depo., at 57-58; Exh. 3 to White Depo. While White was present, the Chancellor then called plaintiff in to discuss what White called the "unbelievable rumors." Exh. 3 to White Depo.
Defendants White and Stone cannot be charged with violating plaintiff's rights for merely receiving malicious phone calls about her. Section 1983 creates a cause of action for a person deprived of "rights, privileges, or immunities secured by the Constitution and laws." The most that can be said on these facts is that White and Stone impaired plaintiff's reputation by repeating the rumors. The Supreme Court has held on more than one occasion that reputation by itself is not a protected liberty interest under the fourteenth amendment. Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991); Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). Damage to plaintiff's reputation, if any, is not actionable under the Civil Rights Act.
At most, plaintiff states a cause of action for infliction of emotional distress and defamation against White and Stone for repeating the rumors to the Chancellor. This Court declined to exercise its pendent jurisdiction over plaintiff's state law claims for slander and intentional infliction of emotional distress. Order of July 20, 1989. Plaintiff thereafter asserted these claims in state court. As requested by defendant White, the Court takes judicial notice that the First Appellate District of the California Court of Appeal affirmed the trial court's sustaining of defendants' demurrer to these claims. See Mitchell v. Stone, et al., No. A048853 (Cal. App. Dec. 10, 1990). The court held that these tort claims were barred by the workers' compensation laws. See id.
Plaintiff maintains that Stone's and White's affirmative conduct and purported failure to insure a fair selection process amounts to a deprivation of due process, which is actionable under Section 1983. It is true that the due process clause contains a substantive component which guards against "arbitrary and capricious governmental action, even when the decision to take that action is made through procedures that are in themselves constitutionally adequate." Arroyo Vista Partners v. County of Santa Barbara, 732 F. Supp. 1046, 1053 (C.D. Cal. 1990). To prevail on her Section 1983 claims against White and Stone, plaintiff contends she need only establish that these officials were guilty of "grave unfairness" in the discharge of their legal responsibilities. See id. Yet plaintiff fails to provide evidence supporting this threshold requirement.
After a careful examination of the record, therefore, it is clear that plaintiff has failed to provide any evidence which could arguably sustain her claims against Peralta, White, and Stone. Although courts must be cautious in granting summary judgment when motivation and intent are at issue because of the "elusive factual question" of intentional discrimination, Perez v. Curcio, 841 F.2d 255, 258 (9th Cir. 1988); Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987), such relief is nevertheless appropriate where evidence of unlawful conduct is totally lacking. See Foster v. Arcata Associates., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048, 89 L. Ed. 2d 576, 106 S. Ct. 1267 (1986).
IT IS HEREBY ORDERED that:
(1) Plaintiff's motion to strike defendants White's and Stone's motions for summary judgment is DENIED; and
(2) Defendants Peralta's, Harley White's, and Amey Stone's motions for summary judgment are GRANTED.